Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Commissioner of Police, NSW Police Force v EMB [2020] NSWCATAP 262 Hearing dates: 2 December 2020 Date of orders: 10 December 2020 Decision date: 10 December 2020 Jurisdiction: Appeal Panel Before: A Suthers, Principal Member Decision: (1) The application for a stay of the order made by the Tribunal below is dismissed. (2) The respondent's submissions and evidence in support of the application for costs is to be lodged with the Appeal Registry and given to the appellant within 21 days of the publication of these orders. (3) The appellant's submissions and evidence in response are to be lodged with the Appeal Registry and given to the respondent within 21 days thereafter. (4) Any submissions in reply are to be lodged with the Appeal Registry and given to appellant within 7 days thereafter. (5) Submissions on the application for costs are not to exceed five pages in length. (6) A hearing of the application for costs is dispensed with and it is to be determined on the papers. Catchwords: APPEALS – Interlocutory - Firearms Licence - Stay Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Firearms Act 1996 (NSW) Cases Cited: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 Beck v Colonial Staff Super Pty Ltd & Ors (No. 2) [2015] NSWSC 1360 Bell v Commissioner of Taxation [2012] FCA 1042 Bentran v Sabbarton [2014] NSWCATAP 37 EMB v Commissioner of Police [2020] NSWCATAD 255 Cook's Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd [2008] 2 Qd R 453 House v The King (1936) 55 CLR 499 Lee v Medical Council of NSW [2017] NSWCATOD 132 New South Wales Bar Association v Stevens [2003] NSWCA 95 Penrith Whitewater Stadium Ltd v Lesvos Pty Ltd [2007] NSWCA 103 Re Maria Politis v Commissioner of Taxation [1988] FCA 739 at [14]; 20 ATR 108 at 111 Re Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002; Appellant S106/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 30; 77 ALJR 1165 Serobian v Commonwealth Bank of Australia [2009] NSWCA 309 Sobey v Commercial and Private Agent's Board (1979) 20 SASR 70 Texts Cited: Nil Category: Procedural and other rulings Parties: Commissioner of Police, NSW Police Force (Appellant) EMB (Respondent) Representation: Counsel: C Nowlan (Respondent) Solicitors: Maddocks Lawyers (Appellant) Johnson & Sendall (Respondent) File Number(s): AP 20/48252 Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the publication of the name of the respondent is prohibited. Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: [2020] NSWCATAD 255 Date of Decision: 20 October 2020 Before: N Isenberg, Senior Member File Number(s): 2020/00152964 REASONs FOR DECISION Background 1. On 16 November 2020, the appellant lodged a Notice of Appeal commencing an internal appeal against an order made by the Administrative and Equal Opportunity Division on 20 October 2020, as follows: 1. The [appellant]'s decision is set aside and the Tribunal substitutes a new decision to grant a category AB firearms licence to the [respondent], for the genuine purpose of 'sport/target shooting.' (the Decision) 1. The appellant has also lodged an application for a stay of that order. I heard that application on 2 December 2020 and reserved my decision. These are the reasons for my decision to dismiss the application for a stay. 2. The respondent has a long association with the sport of shooting. He has been licensed to possess and use firearms since 1993. 3. In 2013, the respondent was licensed to possess and use firearms under a Category ABC licence. On 30 May 2017, that licence was suspended due to issues referred to below. While suspended, his licence expired and, on 19 June 2019 he applied for a Category AB licence. That application was refused by the appellant on the basis that it is not in the public interest for the respondent to hold a firearms licence. The respondent sought internal review of the refusal decision but, as he was not notified of the outcome of the review within 21 days, he brought an application for review to the Tribunal. He was successful in his application, leading to the Decision. 4. The basis for the initial suspension of the respondent's licence, and the most significant aspect of the dispute now between the parties as to whether a firearms licence should be issued to him, is the respondent's actions which led to him being charged with offences relating to alleged criminal conduct in sexually abusing several children. 5. Whilst those offences were not prosecuted to completion, and the respondent was never convicted of a related offence, the hearing of the application in the Tribunal below proceeded without challenge to the assertions made against the respondent. As a result, the Tribunal found that the allegations of the complainants in relation to the alleged sexual misconduct were true. 6. That finding is unchallenged by the respondent, and I will proceed on the basis that the conduct complained of occurred. As the conduct was described in the reasons for the Decision (EMB v Commissioner of Police [2020] NSWCATAD 255), I will not repeat it here. The conduct was described in the reasons for the Decision as 'abhorrent,' at [51]. 7. For completeness, the Tribunal also dealt with evidence that the respondent had a prior traffic infringement history and a prior conviction for common assault. Whilst those issues were relevant for the Tribunal below, and will be relevant in the appeal, they have assumed little significance in this application for a stay. 8. The test for whether a firearms licence should be issued is set out in s 11 of the Firearms Act 1996 (NSW), relevantly, as follows: 11(3) A licence must not be issued unless: (a) the Commissioner is satisfied that the Applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace, and ... (7) Despite any other provision of this section, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest. 1. In reviewing whether a licence should be issued to the respondent, the Tribunal had to rehear the issue, and come to the 'correct and preferable decision': Administrative Decisions Review Act 1997 (NSW), s 63. 2. The appellant initially determined that it was not in the public interest for the respondent to be issued with a licence. In the proceedings below, however, and in the appeal, the appellant also submits that the respondent is not a fit and proper person to hold a firearms licence. 3. Of course, my role in determining the application for a stay is not to decide whether the respondent is a fit and proper person to hold a licence or whether it is in the public interest that he do so. Legislative Foundation and Principles Relating to Granting a Stay 1. The lodgement of an internal appeal does not affect the operation of the decision appealed. Nonetheless, under s 43(3) of the Civil and Administrative Tribunal Act 2013 (NSW) (the Act), the Tribunal has discretion to stay the operation of a decision pending the determination of the appeal. That discretion must be exercised judicially and the general principles that apply in relation to the exercise of that discretion are derived from the terms of s 43(3) itself. Additional guidance can be obtained from the considerations applied by the courts in deciding whether or not to grant a stay pending an appeal, summarised in a decision of the Appeal Panel constituted by the former President of the Tribunal, Wright J, in Bentran v Sabbarton [2014] NSWCATAP 37. 2. Here, it is sufficient to cite the summary of Slattery J in Beck v Colonial Staff Super Pty Ltd & Ors (No. 2) [2015] NSWSC 1360 at [35], that: [35] The principles governing a stay of a judgment pending appeal are well established. The applicant must demonstrate that there is a reason for the grant of a stay or that a matter is an appropriate case in the exercise of the Court's discretion: Alexander v Cambridge Credit Corporation (1985) 2 NSWLR 685 ("Cambridge Credit") at 694. It is not necessary for the applicant for the stay to establish special or exceptional circumstances: Cambridge Credit at 694. The stay is likely to be granted if the appeal would otherwise be rendered nugatory. The Court considering the grant of a stay is not required to determine the merits of the appeal but usually considers whether the applicant has at least an arguable case; and the Court may impose conditions on the grant of a stay including that the applicant pay a sum of money into Court or otherwise secure the payment of the disputed sum: Cambridge Credit at 694-5. The central determinant as to whether a stay would be granted, and if so upon what terms, if any, is the Court's assessment as to what is a fair balance of the rights of the parties, given that an appeal does not of itself operate as a stay and the party who has succeeded at trial is entitled to the fruits of its victory: Cambridge Credit and see also Woodlawn Capital Pty Ltd v Motor Vehicles Insurance Ltd [2015] NSWCA 227 ("Woodlawn") at [7]-[9]. 1. In Cook's Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd [2008] 2 Qd R 453, Keane JA noted that courts are not disposed to delay the enforcement of orders and that the fundamental justification for delaying enforcement is to ensure that orders which ultimately might be made are fully effective. His Honour also noted that the question, ultimately, is whether the applicant for a stay would be prejudiced irretrievably if the stay were not granted and the appeal ultimately upheld. 2. Justice Keane also observed that the prospects of success may weigh significantly in the balance of the relevant considerations, saying, at [13] and [14]: [13] In cases where this Court is able to come to a preliminary assessment of the strength of the appellant's case, the prospects of success on appeal may weigh significantly in the balance of relevant considerations. The prospects of success will obviously tend to favour the refusal of a stay if the prospects of the appeal can be seen to be very poor. That is because, if there is obviously little prospect of ultimate reversal of existing orders, the concern to ensure that the existing orders can be overturned without residual injustice will have less claim on the discretion than might otherwise be the case. [14] The extent to which a preliminary assessment of prospects of success, which suggests that the prospects of success are good, should dispose the Court towards granting a stay may be somewhat less clear. It was, however, accepted by Stork that Cook's appeal is arguable, and Cook did not seek to argue that its prospects of success on the appeal are so strong as to overwhelm the importance of the consideration that the courts should impede the enforcement of their orders only so far as is necessary to ensure that the orders which might ultimately be made by the court can be given effect without leaving a residue of injustice. 1. The overriding principle in any application for a stay is to ask what the interests of justice require: New South Wales Bar Association v Stevens [2003] NSWCA 95 at [83]; Penrith Whitewater Stadium Ltd v Lesvos Pty Ltd [2007] NSWCA 103 at [18]. Application in the Present Case 1. The respondent should be taken to be entitled to the benefit of the decision at first instance unless the appellant can demonstrate that it is appropriate to grant a stay of the order made. 2. The first matter that I should consider is whether the appeal raises serious issues to be determined or, in other words, whether the appellant has a reasonably arguable case on appeal. It is neither appropriate nor necessary for me to attempt to determine whether the appeal will succeed. The apparent merit of the appeal is, however, a relevant consideration. 3. The appellant raises the following grounds of appeal, as summarised in his submissions on the application for a stay: 1. The Tribunal fell into error in its consideration of s11(3)(a) of the Firearms Act 1996 (NSW) by: 1. not taking into account a relevant mandatory consideration, being the principle relating to the assessment of the respondent's fitness and propriety, in that the Tribunal failed to give real and genuine consideration to those principles; 2. misapplying and/or misconstruing the principles relating to the assessment of the respondent's fitness and propriety; and/or 3. misconstruing the requirement in s 11(3)(a) that the Tribunal is to be satisfied that the respondent is a fit and proper person. Together, "Ground One." 1. The Tribunal erred in its consideration of the issue of the public interest under s 11(7) of the Act by giving insufficient weight to the nature and substance of the conduct relating to charges laid against the respondent in 2017 ("Ground Two"); and 2. The Tribunal's conclusion to grant the respondent's application for an AB firearms licence was manifestly unreasonable ("Ground Three); 1. The appellant also seeks leave for the appeal to be extended to examining the merits of the substantive decision, in accordance with s 80(2)(b) of the Act. 2. In support of a stay the appellant, in effect, points to what he perceives as the relative strength of the appeal, and the importance of protecting the public interest. It is also submitted that the stay is necessary to secure the effectiveness of the appeal. Is a stay necessary to secure the effectiveness of the appeal? 1. In the strict sense, a stay cannot be said to be necessary to secure the effectiveness of the appeal. On the application for a stay the respondent submitted that when his license was suspended in 2017 he transferred his firearms to another licenced person, without incident. This submission was unchallenged. There is no proper basis for me to infer that this would not occur again if the respondent is issued with a licence now and the appellant is later successful in the appeal. Of course, should respondent fail to do so, there are other steps the appellant could take to enforce the removal of firearms in the possession of an unlicenced person. The apparent merit of the appeal 1. In submissions, and without abandoning the other grounds of appeal, the appellant focussed on the question of whether the Tribunal had erred by either: 1. Giving inappropriate weight to the fact that the respondent had not used a firearm in any of the previous conduct of concern to the appellant; or 2. Considering that as the determinative factor in its considerations. 1. There are two passages from the Tribunal's reasons for the Decision which appear to have raised the appellant's concern in this regard: 1. At [51], the Tribunal records the following: I have found that the Applicant engaged in conduct which can only be described as abhorrent. However, it did not involve firearms, nor have there been any incidents whatsoever in his capacity as a gun owner, nor in relation to firearms at all. The conduct does not lead me to a view that the Applicant is not a fit and proper person to hold a firearms licence. 1. At [64] to [66] the Tribunal went on to record that: 64 Following the approach of JM Frost in AMJ v Commissioner of Police NSW Police Force [2012] NSWADT 228 I consider there to be several factors that weigh in the Applicant's favour. 65 Firstly, although the Applicant was charged with several serious offences, none involved a firearm. 66 Secondly, in considering whether it is not in the public interest for the Applicant to hold a licence, considerations of public safety are especially relevant. The Applicant has never been charged with a firearms offence despite holding various licences over 25 years. There was no evidence that his holding a licence has ever created any danger. 1. It appears from those passages that the Tribunal did place particular weight on the lack of any nexus between the respondent's lawful access to a firearm and any offending behaviour. 2. The decision, however, must be read in context, fairly, and as a whole: Re Maria Politis v Commissioner of Taxation [1988] FCA 739 at [14]; 20 ATR 108 at 111; Re Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002; Appellant S106/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 30; 77 ALJR 1165, per Kirby J at [147]. 3. Those passages are found within an extensive examination of the issues of relevance to the Tribunal's determination. The appellant also concedes, properly in my view, that the issue of any nexus between the respondent's firearm ownership and offending was not an irrelevant consideration. 4. It is generally accepted that a finding as to the weight to be given to relevant factors in discretionary decision making will not be readily disturbed on appeal, unless there is a manifest error in the process adopted by the decision-maker: House v The King (1936) 55 CLR 499. 5. Here, it also appears that in the passages above the Tribunal may have been addressing a relevant consideration, which it adverted to at [39] and [40] of its reasons for the Decision and saw fit to draw attention to by placing the relevant consideration in bold, that: 39 In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, Mason CJ explained, at 380, that: The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration. 40 Toohey and Gaudron JJ said at 380: The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question. (Tribunal's emphasis) 1. I accept that the appellant's case in this respect is arguable but if I am able to form a preliminary view I should consider what weight to apply to its apparent merit in determining the application for a stay. Other grounds in the appeal 1. Having found that the appeal is arguable on the basis above, I do not propose to deal with the other grounds at length. They were not pressed as significantly adding to the prospects of the appeal in submissions on the application for a stay. It is appropriate, however, that I indicate whether, taken as a whole, the grounds add to the weight I should give to the apparent merit of the appeal. Ground One 1. It is alleged that the Tribunal misconstrued, failed to give proper consideration to, or failed to correctly apply the principle that the respondent had to be a fit and proper person to be issued with a licence. 2. This ground is premised on the allegation that the Tribunal confined its consideration in this regard to whether the respondent had used a firearm in the prior incidents which were of concern to the appellant. I have largely dealt with this issue, above. 3. For completeness, though, I note that the Tribunal's reasons for the Decision are extensive and appear to refer to the relevant tests and considerations to be applied. It is not immediately apparent that the Tribunal misunderstood the task before it or failed to advert to the relevant issues, although the appellant says that the Tribunal failed to refer to the respondent's character, honesty, moral integrity and rectitude, referring to Sobey v Commercial and Private Agent's Board (1979) 20 SASR 70. The Tribunal did, however, refer to the respondent's prior breaches of the law and regulatory schemes. It also made findings that the respondent engaged in conduct which, if established to the criminal standard would constitute criminal offences. The Tribunal was satisfied that that conduct was, in any event, abhorrent. 4. In terms of whether the Tribunal confined its consideration to the relevance of whether the respondent had engaged in prior offences using firearms, I note that, at [61] to [63] the Tribunal recorded that: 61 Private interests are not the only matters taken into account; the interests of the whole community are matters for consideration: Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657 at 681. Consideration of public interest allows for matters going beyond the applicant's character to be taken into account. They include public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16 at [33]. The concept includes standards acknowledged to be for 'the good order of society and for the well-being of its members': Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63. 62 Hennessy DP in Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 (Ward) at [28] said that in terms of public safety, "the Tribunal must be satisfied that there is virtually no risk", while acknowledging that the Tribunal could never be totally satisfied that a person would never pose any risk to public safety. Although Ward was a case on the "fit and proper person" test, the formulation has been held to also apply to the public interest test as well: see Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89 at [23] and Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206 at [130]. The question of risk is not to be viewed as requiring an applicant to discharge an almost impossible burden of proving a near absolute negative, but, in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, at [64] – [66]. 63 The principle in Ward is to the effect that the licensing regime is not about punishment but rather about protecting the public. It is about identifying the possible risks to the public, and then making decisions that are consistent with the need to reduce any risks to a minimum. See also Petas v Commissioner of Police, NSW Police Force [2013] NSWADT 137 at [36]. Since Ward, Hennessy DP has cautioned against applying that language in a mechanistic way: see AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 at [7]. 1. I am not satisfied that a broader consideration of this ground adds to the weight I should give to the apparent merit of the appeal. Ground Two 1. The appellant says that the Tribunal placed insufficient weight on the nature and substance of the conduct relating to charges laid against the respondent in 2017. Whilst I also accept this is an arguable ground, it is another challenge as to the weight given by the Tribunal to apparently relevant considerations and adds little to the weight I should give to the apparent merit of the appeal. Ground Three 1. Lastly, the appellant says that the decision was manifestly unreasonable. No submissions were made as to the merits of this ground on the application for a stay. 2. The respondent submits that the decision has a clear factual and legal basis and that the appellant is seeking a review on the merits by framing this ground of the appeal as legal unreasonableness, an error on a question of law. The respondent refers to the comments of Gordon J in Bell v Commissioner of Taxation [2012] FCA 1042 at [90]: The second so-called "relevant" consideration is misconceived. It is not a "consideration". It is the application of the relevant statutory provisions to findings of fact. Taken at its highest, the Applicant merely seeks to challenge a finding which the Applicant contends that the AAT ought to have made. In that sense, of course, the AAT took it into account. By making findings contrary to the position contended for by the Applicant, the AAT has taken that finding into account. Indeed, the weight to be attached to evidence and whether incorrect conclusions were drawn from the evaluation of evidence are matters of fact, not law. The Applicant's grounds of appeal are framed in terms of relevant and irrelevant considerations, but the substance of his position amounts to a disagreement with the factual and legal basis of the AAT's decision: Commissioner of Taxation v Luxottica Retail Australia Pty Ltd [2011] FCA 20; (2011) 191 FCR 561 at [42]; Zizza v Commissioner of Taxation (1999) 41 ATR 96 at [51] and [90] and Abebe at [194]-[195]. … Simply framing the grounds in terms of relevant and irrelevant considerations cannot transform them into questions of law … 1. In the absence of submissions from the appellant as to how the decision was legally unreasonable, the respondent's submissions in this regard appear to have merit. They would also appear to be apt to the first limb of Ground One. The Public Interest 1. It is uncontroversial between the parties that the public interest is a relevant consideration in determining a stay of this nature, as found in Lee v Medical Council of NSW [2017] NSWCATOD 132, at [17]. 2. I agree with this approach, particularly as the relevant competing right or interest of the appellant could be described as the proper administration of the firearms licensing scheme, ensuring that only fit and proper persons are issued with licences and that this not occur unless it is in the public interest. 3. Prima facie, the public interest weighs against anyone being issued with a firearms licence unless there is "virtually no risk" in doing so, while acknowledging that the "Tribunal could never be totally satisfied that a person would never pose any risk to public safety": Ward. 4. In determining whether the public interest weighs in favour of my granting the stay, it is relevant that the respondent wishes to have the licence for sporting purposes only. He will not be prejudiced in earning an income if the stay is granted. The appeal has been listed promptly for hearing in February 2021. This is only one relevant factor, however, and it must not be allowed to be determinative in granting a stay, simply through expedience. 5. I should interpolate at this point to note that the appellant also submits that the granting of a stay at this time would merely maintain the status quo pending determination of the appeal. This is because the respondent has not yet been issued with a licence by the appellant, despite him having made an application for a licence and the effect of the Decision. 6. This submission must be rejected. The status quo is that the respondent is entitled to the issue of the relevant licence, in accordance with the Decision. Determination 1. Weighing those considerations, and asking the overriding question of what the interests of justice require, I am not satisfied that I should grant a stay in this matter pending determination of the appeal. 2. I accept that if a stay is not granted, one of the appellant's practical objectives in the appeal will be lost, in that there will be a period where the public are exposed to the risk of a potentially inappropriate person holding a firearms licence: Serobian v Commonwealth Bank of Australia [2009] NSWCA 309 at [24]. 3. My preliminary assessment is that the appellant's prospects of succeeding upon what appears to be the main ground of the appeal, as it is currently framed, are by no means assured. Because the other grounds of the appeal were not agitated in argument before me, I would simply note that, whilst arguable, they do no more to satisfy me that the respondent's prima facie right to the benefit of the decision below should be treated as merely provisional, even taking into account the importance of maintaining the public interest. 4. Accordingly, the application for a stay should be dismissed and I will order that: 1. The application for a stay of the order made by the Tribunal below is dismissed. 1. The respondent indicated in submissions that, if successful in resisting the application, he sought costs. 2. The parties agreed that, in that event, I should make directions for submissions in that regard and that it would be appropriate to dispense with a hearing of the costs application and determine it on the papers. 3. On that basis I will direct that: 1. The respondent's submissions and evidence in support of the application for costs is to be lodged with the Appeal Registry and given to the appellant within 21 days of the publication of these orders. 2. The appellant's submissions and evidence in response are to be lodged with the Appeal Registry and given to the respondent within 21 days thereafter. 3. Any submissions in reply are to be lodged with the Appeal Registry and given to appellant within 7 days thereafter. 4. Submissions on the application for costs are not to exceed five pages in length. 5. A hearing of the application for costs is dispensed with and it is to be determined on the papers. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 December 2020